Active Duty Service Members – Where Should I File for Divorce?


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When someone is part of the armed forces, there are unique rules regarding the divorce process that apply to the servicemember and his or her spouse. Often individuals in the armed forces move frequently and may claim residency in a different state than where they are currently stationed. Servicemembers and their spouses may have additional places where they can file. Where they file can have a significant impact on their divorce.

Filing Locations

When someone files for divorce, the spouse usually has the option to file for divorce in the state where he or she lives or where the other spouse lives, subject to minimum residency requirements. In the armed forces, the servicemember and his or her spouse have these same basic options. The servicemember may decide to file for divorce where he or she is stationed. He or she could also choose to file where the other spouse resides. The servicemember’s spouse has these same options if he or she is the filing spouse.

Another option is for the spouse to file in the state where the servicemember claims legal residency. He or she may have every intention to return to a previous state even though he or she may have been stationed in another location for years.
These options are available based on principles related to jurisdiction. A court must have jurisdiction over the parties in order to have the authority to hear the case. Jurisdiction can exist where the servicemember has legal residence even if the servicemember is stationed in another state.

Impact of Jurisdiction

If a spouse files for divorce in a particular jurisdiction, the laws of that state will apply. The state may have particular laws related to the grounds for divorce, property distribution, child custody, spousal support and child support. Because these laws vary significantly from one state to the next, the individual filing for divorce may consider which state is more likely to have laws in place that will serve their interests.

Residency Requirements

Many states have minimum residency requirements in which they mandate that a spouse live in the jurisdiction for a specified period of time before allowing the spouse to avail himself or herself of divorce laws in that jurisdiction. However, many states reduce or eliminate these minimum residency requirements for servicemembers.

Service Members Civil Relief Act

Individuals who are on active duty can slow the process of divorce if they so choose. This law allows spouses to delay legal proceedings while the servicemember is on active duty so that he or she can devote his or her time and attention to service. Proceedings can be suspended while the servicemember is on active duty and for 60 days following active duty status.

Military Pensions and Benefits

One important consideration is the military pension that the servicemember may be entitled to. Such a pension may be subject to division between the spouses like other types of pensions are. The federal Uniformed Services Former Spouses’ Protection Act allow military pensions to be treated as sole or community property depending on state laws. Understanding which state will treat the military pension as sole or community property is critical since this can have such a significant impact on the spouses for years to come. If the servicemember is filing, he or she may want to elect to file for divorce in a state that will interpret the military pension to be his or her own. If the spouse is filing, he or she may choose a state to file in that will divide the pension so that he or she receives a portion of the pension.

If the spouses were married for more than ten years during which the servicemember was in the military, the Defense Finance and Accounting Service pays the spouse’s portion directly to him or her. A court can authorize payment to a military spouse even if the marriage was shorter but such payment comes from the servicemember rather than the Defense Finance and
Accounting Service.

The military spouse may also be entitled to other benefits, including medical health insurance, commissary and exchange privileges, depending on the length of the marriage and military service.

Legal Assistance

Military divorce includes significant differences when compared to other types of divorces. Servicemembers and their spouses should become familiar with the unique legal issues involved in military divorce. They may reach out to divorce lawyers who are knowledgeable in divorce laws who can explain various legal issues and provide representation during the process.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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